The State v Elias Nason and Jimmy Pepena

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 19 March 2024
• Neutral Citation: N10743
• Citation: N10743, 2024-03-19
• Counsel: Ms L Ilave, for the State,Mr J Kolowe, for the accused
• Docket Number: CR (FC) 130 & 131 OF 2022
• Hearing Date: 19 March 2024
• Court: National Court

N10743

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 130 & 131 OF 2022

The State

v.

Elias Nason and Jimmy Pepena

Waigani: Berrigan J

2024: 19^th March

CRIMINAL LAW — PRACTICE AND PROCEDURE — OFFICIAL CORRUPTION — Section 87(1)(a)(i)(ii) of the Criminal Code — Elements of Offence — Employed in the Public Service for the purposes of s 83A — Charged by virtue of that employment — Received property or benefits for himself — On account of any thing done or omitted to be done or to be done or omitted to be done — In the discharge of the duties of his office — Corruptly — Offence established against one accused.

Cases Cited

Maraga v The State (2009) SC968

James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173

State v Toamara [1989] PNGLR 24

State v Mataio (2004) N2531

State v Duncan [2015] PGNC 279; N5010

Brian Kindi Lawi v The State [1987] PNGLR 183

Wartoto v State (2019) SC1834

Havila Kavo v The State (2015) SC1450

Banaso v The State (2022) SC2302

S v Gamato and Hetinu (2021) N9250

References Cited

Sections 83A, 87 of the Criminal Code

Section 188 Constitution

Counsel

Ms L Ilave, for the State

Mr J Kolowe, for the accused

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused

DECISION ON VERDICT

19^th March 2024

1. Berrigan J: The accused, two police officers, are charged with corruptly receiving cash for themselves in the sum of K350 on account of releasing Dr Scotty Kandelyo from their custody, contrary to ss. 87(1)(a)(i)(ii) of the Criminal Code. It is the State case that Elias Nason received the monies and Jimmy Pepena aided him to do so.

2. Elias Nason admits that he received K350 from Dr Kandelyo but denies any wrongdoing. Jimmy Pepena denies any involvement.

STATE CASE

3. Dr Scotty Kandelyo is an emergency physician with Port Moresby General Hospital. Since 2018 he has been the Deputy Chief Emergency Physician for Momase and Highlands Region. At the time he was working in Port Moresby at the National Control Centre for Covid 19.

4. On 3 October 2021 he went to Ela Beach with his wife, Dr Rose Morre, and an uncle. At about 7 pm whilst driving home he was stopped by police on the way to Konedobu. Officers told him that his tail lights were not working and directed him to follow them to the downtown police station at Konedobu.

5. He, his wife and uncle were taken to a room by at least three officers. Whilst one of the officers was taking his details, an officer he identified as Jimmy Pepena, came in and screamed at his wife and uncle to switch off their phones. When the complainant objected, Pepena said in pidgin: “Your knowledge is rubbish. I will lock you behind the prison and you will smell the “pek pek” of the prison”.

6. An officer, who later became the arresting officer, and whom I am satisfied on the evidence was Senior Constable Amex Elia, questioned him for three or four hours until 1130 pm. The complainant repeatedly told him that he did not check his tail light and admitted that he was at fault. SC Elia told him that he could pay. The complainant said that he would pay whatever the penalty was but he would not pay without a receipt. SC Elia told him that the receipt book was not there but at Boroko. He asked him if they could go to Boroko and pay. SC Elia said yes but if they go to Boroko it is another police station and they will arrest him.

7. From time to time during that time SC Nason, whom the other officers called “boss”, asked him if he had any last words to say. He told both SC Elia and SC Nason on several occasions that he was at fault and that he was willing to pay but that he would not pay without a receipt. Both SC Nason and SC Elia told him that he could pay but they do not have receipts. He told them he cannot just pay. Both SC Nason and SC Elia told him that if he cannot pay they will take him to Boroko Police Station but if they take him to Boroko he will be formally arrested.

8. It was getting late and he asked them how much it would cost. SC Elia told him it would cost K1000. SC Nason told him to withdraw cash from the ATM outside the station. He refused. They asked him to go and get the cash a second time. He did not want to but he was afraid to refuse. SC Nason appeared to be drunk. He withdrew K1000 but he did not give it to them because that would have been bribery. They continued to ask him if he had any last words before they arrested him. He told them he was sorry, he would pay if they had any receipts.

9. Towards 11 pm or 12 am they formally arrested him and took him to Boroko cells to lock him up. When they walked in to Boroko Police Station the officer working there asked what the charge was. The complainant told him it was a traffic offence and the officer said: “That is a big offence. You will be locked up for 6 months.” The officer then told SC Nason and SC Elia that the cell was very full and to take him back downtown.

10. He was standing outside Boroko Police Station with SC Nason and SC Elia. It was 12 or 1 am in the night. They were both drunk and he did not want to go back downtown with his wife or be taken to the cells, so he told them that he would give them the moneys. He asked them how much they wanted and they said K500. He said K300 and they said add money for fuel, so he gave K350. SC Nason said words to the effect: “The case is still fresh. Call me in the morning. Put the double blinker on and go home.” SC Nason gave him a number but refused to provide his name.

11. He had been kept in the cell for 3 or 4 hours then taken to Boroko and the officer at Boroko made it worse by saying 6 months. He feared for his life and he made a decision. It started at the police station. They did not directly ask for money but kept on asking if he had any last words to say. It was clear they wanted money which he denied until 1 am when he feared for his life.

12. He could not sleep. He was working under the National Control Centre reporting to the Controller for Covid, David Manning. Early in the morning he sent an email to the Controller David Manning reporting what had happened. He had to report to him why he was not coming in. He was aware that Manning was also the Police Commissioner. Insp Terry called him at about 8 am and he provided details.

13. Dr Rose Morre Kandelyo is a paediatrician. At the time she was working with the NCD Provincial Health Authority. She is currently Deputy Director Public Health. On Sunday, 3 October 2021 at about 7 pm as they were driving towards Konedobu they were stopped by police who told them that their tail lights were not working and directed them to follow them back to the police station.

14. At the station, in the presence of SC Elia and two other policemen, whom I am satisfied were SC Nason and C/Pepena, the complainant was asked to give his identification and place of work. SC Nason and Pepena appeared to be drunk. They smelt of alcohol and had red eyes. Her husband told the officers that he was in the wrong, he did not notice that the tail lights were not working and he would pay the charge. He asked for a receipt. C/Pepena was screaming and swearing and her husband could not speak. The officer screamed at her and her uncle to put their phones away and leave but they did not. Pepena told the complainant that he was a police officer for 28 years and that he should respect him. SC Elia questioned her husband from 7 pm to 11 pm. He was writing notes but she does not know what the notes were. From time to time, SC Nason, whom others referred to as “boss”, would come and ask the complainant if he had any last words. The complainant kept saying that he wanted to pay but he needed a receipt. They told them that they did not have a book there and to go and get money from the ATM at BSP. Her husband did that but he kept the money in his pocket and continued to ask for a receipt. At about 1130 pm they told them to get into their vehicle with a police officer and to drive to Boroko Police Station. She is not able to say who the officer was who got in the vehicle with them as it was dark.

15. SC Nason and SC Elia accompanied them to the station. At the station SC Nason and SC Elia spoke to the officer at the cells. He said that the cell is full and told them to take him back to Konedobu. It was late and she was getting very scared. She told her husband to please sort it out so that they could go home. SC Nason said okay and asked for K500. Her husband gave SC Nason K350 — 3 K100 notes and a K50 note. SC Nason told them that the case is still fresh, to put the double blinker on and to go home. SC Nason gave a number but refused to give his name.

16. Her husband was traumatised and could not sleep. In the morning he sent an email to Controller Manning to explain why he could not go to work.

17. Inspector Apollos Terry, 39 years standing with RPNGC, has been in charge of the Internal Affairs Directorate for five years. He received a complaint from the complainant on 4 October 2021 that two officers extracted K350 cash from him. He checked with the station commander at Konedobu to find out who was on duty that night and subsequently called both accused to his office where they admitted receiving the money and gave K350 to him in cash.

18. Prior to 2021 bail could be paid by cash but from 2021 bail must be paid by eftpos not in cash. As a general rule a person arrested is to be taken to Boroko cells where they may be bailed by the station commander or the cell supervisor. A receipt is issued together with a bail form, a copy of which is given to the accused. Bail must be paid prior to leaving the station. There is no power to release a person to go home and return the next day to complete bail if the station commander or supervisor is not available. If the cell is full then the detainee is to be taken back to the substation holding cell.

19. A broken tail light is a very minor traffic offence. There was no need to arrest anyone. A TIN could have been issued....